July 14, 2005
Via Facsimile and Electronic Mail
The Honorable Craig Manson
Assistant Secretary for Fish, Wildlife, and Parks
U.S. Department of the Interior
1849 C Street, N.W.
Room 3156
Washington, DC 20240
Re: Reopening the Comment Period on Proposed Designation of
Critical Habitat for the Southwestern Willow Flycatcher (70
Fed. Reg. 39,227, July 7, 2005).
Dear Assistant Secretary Manson:
The Office of Advocacy of the U.S. Small Business
Administration (Advocacy) submits these comments on the U.S.
Fish and Wildlife Service's (FWS) Reopening of the Comment
Period on Proposed Designation of Critical Habitat for the
Southwestern Willow Flycatcher.(1) Advocacy believes that
FWS has not yet addressed the legal concerns that Advocacy
raised in response to the initial proposal to designate
critical habitat for the Southwestern Willow Flycatcher.(2)
Advocacy strongly recommends that FWS withdraw the
certification of this rule and publish an initial regulatory
flexibility analysis for public comment.
Congress established Advocacy in 1976 under Pub. L. No. 94-
305 to represent the views and interests of small business
within the Federal government.(3) Advocacy is an
independent office within the Small Business Administration
(SBA), so the views expressed by Advocacy do not necessarily
reflect the views of the SBA or the Administration.
Further, Advocacy has a statutory duty to monitor and report
to Congress on FWS' compliance with the Regulatory
Flexibility Act (RFA).(4)
On August 14, 2002, President George W. Bush signed
Executive Order 13272, requiring Federal agencies to
implement policies protecting small businesses when writing
new rules and regulations.(5) This Executive Order
authorizes Advocacy to provide comment on draft rules to the
agency that has proposed or intends to propose the rules and
to the Office of Information and Regulatory Affairs of the
Office of Management and Budget.(6) It also requires
agencies to give every appropriate consideration to any
comments provided by Advocacy regarding a draft rule.
I. FWS has not responded to legal issues Advocacy raised
regarding this designation of critical habitat.
On March 29, 2005, Advocacy submitted comments to this
administrative record pointing out two main legal issues
raised by the proposed rule. First, Advocacy said that the
Endangered Species Act, the RFA, and the agency's own
regulations require FWS to provide at least 60 days notice
and opportunity for comment by regulated small entities on
the agency's final draft economic analysis and RFA
determinations. Second, Advocacy concluded that, given
existing information on the extent of likely impacts of the
designation to small business farmers and ranchers in
Arizona, the rule should not be certified as not having a
significant economic impact on a substantial number of small
entities; but rather that the agency should complete an
initial regulatory flexibility analysis pursuant to the RFA.
FWS published a notice on July 7 that provides 11 days for
public comment on RFA determinations and has certified that
the proposed rule will not have a significant economic
impact on a substantial number of small entities. The
agency notice did not reference or respond to the RFA
compliance comments previously submitted by Advocacy.
A. FWS must publish its RFA determination at the time
of its notices of proposed rulemaking and must
provide at least 60 days of public comment for
critical habitat determinations.
It has been a pattern at FWS to issue a proposed rule, delay
the RFA analysis pending further study, then certify that
the rule will have no significant economic impact on a
substantial number of small entities when the analysis is
completed. The fact that this has become a pattern is
troubling because it seems that FWS is not giving the
appropriate consideration to the requirements of the RFA.
The agency's certification seems little more than a rubber
stamp or ex post validation of a policy decision. Moreover,
such improper delays in conducting the necessary RFA
analysis thwart the ability of affected small entities to
provide meaningful comment on the proposal's impact. In
fact, Advocacy believes there are a number of small entities
likely to face harm from this proposal, and they deserve an
adequate opportunity to review the agency's RFA analysis.
As Advocacy commented previously in this rulemaking:
The RFA requires agencies to publish a
certification or [initial regulatory flexibility
analysis] at the same time as the publication of
their proposed rules. 5 U.S.C. 603(a), 604(a),
605(b). Should FWS find itself unable to comply
with the RFA due to an emergency which would
prevent the agency from timely compliance, the RFA
provides for delayed compliance through specific
mechanisms. 5 U.S.C. 608 (an agency may waive
or delay compliance with section 603's IRFA
requirement upon the publication of a written
declaration of emergency that makes timely
compliance impracticable). However, FWS has not
declared an emergency under the RFA. Advocacy
believes that FWS is not entitled to delay its
statutory obligations routinely, as such delays
could deny the public an opportunity to
participate in FWS rulemakings meaningfully.
Letter from Thomas M. Sullivan, Chief Counsel for
Advocacy, to the Honorable Craig Manson, Assistant
Secretary for Fish, Wildlife, and Parks, U.S.
Department of the Interior, at 6 (March 29, 2005).
In addition to Advocacy's previous concerns regarding the
delay in FWS' RFA determinations, Advocacy believes that it
is wholly inadequate to provide only 11 days of comment on
its RFA determinations and analysis, as opposed to the 60
days that FWS' own regulations require for all critical
habitat designation rulemakings.(7) Therefore, Advocacy
recommends that FWS extend or reopen the comment period on
its RFA determinations for this critical habitat to provide
at least 60 days opportunity for comment from regulated
small entities.
B. FWS failed to respond to comments received on
certifying the rule under the RFA.
FWS certified that the rule will not have a significant
economic impact on a substantial number of small entities.
Such a certification must be published in the Federal
Register, accompanied by the factual basis supporting the
certification.(8)
In response to the previous comment period, small entities
and their representatives informed FWS and Advocacy that the
rule was likely to have significant economic impacts on a
substantial number of small entities. Advocacy provided
comments that explained the economic harm the rule would
likely cause small business farmers in the Yuma County,
Arizona area and small business cattle growers across the
state.(9) Small farmers have commented to FWS that the rule
would result in increased costs. A small rancher
representative commented that the flycatcher critical
habitat designation would likely result in grazing
restrictions on private land developed for agriculture or
grazing.(10)
FWS' factual basis for certification does not mention the
comments received by the agency and does not respond to the
allegations contained in those comments, specifically, that
the agency has not considered: (1) significant small farm
costs stemming from pesticide use, bird protection measures,
and soil tillage and brush control that are likely to be
incurred by small farmers along the included areas of the
Lower Colorado River, and (2) significant costs to cattle
growers affected by restrictions on grazing on land
designated by FWS as critical habitat.
Advocacy believes that publication of a final rule similar
to the rule as proposed, accompanied by a certification
under the RFA, would not meet the requirements of the RFA or
E.O. 13272. Courts review claims of improper certification
under the arbitrary and capricious standard,(11) which the
D.C. Circuit has held to include instances where the agency
"entirely fail[s] to consider an important aspect of the
problem."(12) The Alameda whipsnake critical habitat
designation appears similar to this rule. In that case, the
court ruled that FWS had failed to consider economic impacts
to regulated entities and vacated the rule.(13) Advocacy is
concerned that in failing to consider types of costs which
have been raised in the administrative record, FWS may be
violating the RFA in a manner similar to the above-
referenced case.
IV. Conclusion.
FWS does not appear to have provided adequate opportunity
for public comment on its estimates of the rule's burden to
small entities. Also, Advocacy believes that FWS improperly
certified the rule as not having a significant economic
impact on a substantial number of small entities.
Therefore, Advocacy recommends that FWS (1) withdraw its
notice certifying this rulemaking under the RFA, (2)
complete an initial regulatory flexibility analysis for the
proposed rule, including an analysis of regulatory
alternatives such as excluding geographic areas occupied by
small entities from the designation, and (3) provide a
public comment period of at least 60 days for the initial
regulatory flexibility analysis. Tyhank you for your
consideration and please do not hesitate to contact Michael
See with any further questions at (202) 619-0312 or
Michael.See@sba.gov.
Sincerely,
/s
Thomas M. Sullivan
Chief Counsel for Advocacy
/s
Michael R. See
Assistant Chief Counsel
cc: Dr. John D. Graham, Administrator, Office of
Information and Regulatory Affairs
1. Proposed Designation of Critical Habitat for the
Southwestern Willow Flycatcher, 69 Fed. Reg. 60706 (Oct. 12,
2004) (Proposed Rule).
2. Letter from Thomas M. Sullivan, Chief Counsel for
Advocacy, to the Honorable Craig Manson, Assistant Secretary
for Fish, Wildlife, and Parks, U.S. Department of the
Interior (March 29, 2005).
3. Pub. L. No. 94-305, 90 Stat. 663, 201 et seq.
(codified at 15 U.S.C. 634a-g).
4. Regulatory Flexibility Act of 1980, Pub. L. No. 96-354,
94 Stat. 1164, 3(a) (1980) (codified as amended at 5 U.S.C.
612).
5. Exec. Order. No. 13272, at 1, 67 Fed. Reg. 53,461
(2002).
6. Id. at 2(c).
7. 50 C.F.R. 424.16. On April 15, FWS posted a final
draft economic analysis for this rule on its website. FWS,
Final Draft Economic Analysis of Critical Habitat
Designation for the Southwestern Willow Flycatcher (April
15, 2005) (available online at
http://arizonaes.fws.gov/SWWF_Econ.htm). This economic
analysis did not satisfy the RFA's requirements, as the RFA
requires an RFA determination to be published in the Federal
Register for public review, which the analysis was not, and
the economic analysis neither certified the rule under the
RFA nor discussed alternatives to reduce small entity
burdens. 5 U.S.C. 603(a), 605(b). FWS' RFA
determination was published on July 7, 2005, at which time
the agency opened an 11-day comment period. 70 Fed. Reg.
39227.
8. 5 U.S.C. 605(b).
9. Letter from Thomas M. Sullivan, Chief Counsel for
Advocacy, to the Honorable Craig Manson, Assistant
Secretary for Fish, Wildlife, and Parks, U.S.
Department of the Interior, at 3-4.
10. Letter from Dennis Parker, Attorney for Eddie Johnson
and Johnson Ranch, to Steve Spangle, Field Supervisor, FWS
(Dec. 14, 2004).
11. See North Carolina Fisheries Association v. Daley, 27 F.
Supp. 2d 650, 658 (E.D. Va. 1998).
12. New Mexico Cattle Growers Association v. U.S. Fish and
Wildlife Service, 81 F. Supp. 2d 1141, 1156 (D. N.M. 1999).
13. See Home Builders Association of Northern California v.
U.S. Fish and Wildlife Service, 268 F. Supp. 2d 1197, 1230
(E.D. Ca. 2003).